Vacating molestation conviction was not an arbitrary act

VIEWPOINT

November 21, 2011|By JEROME FRESE

On Nov. 4, under the front-page banner headline "Convicted father to remain free," The Tribune's lead article proposed to inform readers of the nature and the legal consequences of a court order May 12 vacating the conviction of Brian Neirynck for molesting his son. This report -- which includes several potentially misleading statements and completely omits other considerations that, under the law, led to the May 12 order -- does a serious disservice to the reader.

As the judge who presided over the defendant's original 2003 jury trial; as the judge who then sentenced him to 40 years (30 to be executed and 10 more suspended) for his conviction of one count of child molesting; and as the judge who reviewed the newly discovered evidence, produced in the defendant's post conviction relief hearing almost eight years after that sentencing, I appreciate this opportunity to explain the post-conviction process, and to inform Tribune readers of several crucial factors in this case that were not made clear in the Nov. 4 article, nor in the subsequent published piece by Indiana Attorney General Greg Zoeller.

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The carefully measured opinion piece by Zoeller (Tribune, Nov. 9), on the other hand, does an excellent job of explaining why his office decided to withdraw the state's notice of appeal of my May 12 order vacating Neirynck's conviction. As Zoeller explains, had the Court of Appeals, on review, upheld my order, that decision would have created an undesirable legal precedent for future cases, an outcome that the state understandably wanted to avoid. However, the attorney general's article does not address two further crucial issues that readers deserve to know.

First, there is no mention in either piece of the recently discovered counselor's notes made during 31 therapy sessions in a 16-month period with the defendant's 3 1/2-year-old son. These freshly discovered notes were not available to the court or the jury at the time of the original trial. Absent these notes, neither the prosecutor nor the defendant's attorney had questioned the therapist about them. The newly appointed attorney, who had sought these notes for months, received them only minutes before she introduced them into evidence at the post-conviction relief proceeding. The content of these notes -- detailed in my 13-page order setting aside the conviction -- provide the legal basis of a very reasonable likelihood that presentation of these notes to the original jury would have resulted in a different verdict on this charge. For that reason, I vacated the conviction.

Legally, vacating a conviction does not constitute dismissal of the case. The original charge remained and the defendant was returned to the status he had when his trial began: charged, but at liberty on bond. My order releasing him and returning him to that status was neither whimsical nor capricious: It was required by law. There is no double jeopardy attached, as The Tribune's Nov. 4 article erroneously stated. (A correction appears today on Page A2.) Only if the court granting the post-conviction relief had entered a finding of serious prosecutorial misconduct in the trial would the principle of double jeopardy attach. In my May 12 order to set aside the defendant's conviction, there was no such finding of prosecutorial misconduct, a finding which would have prevented retrying the count.

Second, and of equal or greater importance, Zoeller's piece still leaves unaddressed the potential impression that the state would be required to both appeal my May 12 order, and to win that appeal, in order to retry the charge. This was not the case when the state filed its notice of appeal, nor is it the case now, even though the state has chosen to withdraw that notice. After the court order vacating the conviction, but not dismissing the case, the prosecutor then retained three options.

The state could ask for a new trial date on the original charge, a request which, by law, would be granted; on retrial, of course, the newly discovered particulars of the child's counseling sessions then would be presented to the new jury. Or, the state could simply decline to retry the matter, whereupon, by law, the case would be dismissed. Finally, the state could file a notice of appeal from my order to vacation the conviction, and by law, the Court of Appeals would then hear that case. As Zoeller's piece makes eminently clear, the state chose this third option; then, upon careful review subsequently asked the Court of Appeals to dismiss that notice of appeal. The Court of Appeals granted the state's motion to dismiss, with prejudice, which means that the state cannot now reappeal the May 12 order vacating the conviction.